U.S. Army Corps of Engineers Regulatory Program oversight Tile Drain - Abair.pdfWhile the conversion...

U.S. Army Corps of EngineersU.S. Army Corps of Engineers

Regulatory ProgramRegulatory Program

Regulatory Authorities

• Section 10 of the Rivers & Harbors Act of 1899

• Section 404 of the Clean Water Act

Section 10 of the Rivers and Harbors Act of 1899

Regulated Activities

Structures and Work in Navigable Waters of the U.S. (Lake Champlain, Lake Memphremagog, major rivers, and international rivers in VT and NY)

-Dredging-Structures in, over, or under a navigable waterway

-Private docks-Water intake lines-Aerial transmission lines-Submarine cables-Marinas

Section 404 of the Clean Water ActRegulated Activities

Any activity that would involve the permanent or temporary placement of dredged or fill material into any waterway or wetland, including:

–Pond construction

–Mechanized landclearing

–Landscaping

–Land Development (i.e., housing, commercial, industrial, etc.)

–Cofferdams

Section 404 of the Clean Water Act

Regulated Activities

–Roads, culverts, bridges

–Bedding and backfill for utility lines

–Shoreline stabilization

–Sidecasting of material from excavation of new drainage ditches

–Installation of drainage tile

Agricultural Exemptions

- Plowing, tilling, etc., provided the work would not result in a change to the hydrology of the wetland

- Farm or Stock Ponds

- Maintenance, but not construction, of drainage ditches

- Farm roads

Forms of AuthorizationNew England District

Vermont• VT General Permit

–Minimal Impact Projects – impacts not to exceed one acre

• Individual Permit–Projects with greater than minimal

impacts or in excess of one acre of impact

South Bay, Lake Memphremagog, Newport, VT

Forms of AuthorizationNew York District

-Individual Permits

-Nationwide General Permits

- NWP #3 – Maintenance

- NWP# 13 – Bank Stabilization

- NWP #14 – Linear Transportation Projects

- NWP #18 – Minor Discharges

- NWP #39 – Commercial/Institutional Developments

- NWP # 40 – Agricultural Activities

Individual Permit

In VT, projects with direct/indirect impacts to waters of U.S. in excess of one acre or projects which do not meet the criteria of the VT GP

In NY, projects which do not otherwise meet the criteria and thresholds of the NWPs.

Alternatives Analysis

•Only the Least Environmentally Damaging Practicable Alternative (LEDPA) to accomplish the basic project purpose can be permitted

Alternatives Analysis/Mitigation Sequencing

AVOID impacts to waters of the U.S. to the maximum extent practicable (off-site alternatives analysis; leads to LEDPA site)

MINIMIZE impacts to waters of the U.S. (at the LEDPA site) to the maximum extent practicable

MITIGATE for the unavoidable impacts of the project

Full Public Interest Review

Factors Other RequirementsConservation Safety Water Quality Certification

Economics Water Quality 404b1 Compliance

Aesthetic Fish/Wildlife NEPA

Wetlands Erosion CZM

Historic Prop. Water Supply. End. Species Act

Flood hazards Food/Fiber Prod Wild/Scenic Rivers

Floodplain Property ownership Essential Fish Habitat

Land Use General Env. Concerns

Navigation Needs/Welfare of the people

Recreation Mineral Needs

Energy Needs

Issued

DeniedMay be Appealed to Division

Final Decision by District

Application Submitted

Complete for Processing

15-30 day Public Notice Comments by

Agencies, interested groups, public

May need public hearing

INDIVIDUAL PERMITINDIVIDUAL PERMIT

EVALUATION PROCESSEVALUATION PROCESS

Our Resource Agency Partners

U.S. Fish & Wildlife ServiceU.S. Environmental Protection AgencyNational Marine Fisheries ServiceUSDA NRCSVT/NY State Historic Preservation OfficesVT/NYS Departments of Environmental ConservationAdirondack Park Agency

U.S. Fish & Wildlife Service

- Impacts to fish and wildlife habitat

- Required to consult under Section 7 of the Endangered Species Act when a project could result in impacts to a Federally listed threatened or endangered species or their critical habitat.

U.S. Fish & Wildlife Service- Impacts to fish and wildlife habitat

- Required to consult under Section 7 of the Endangered Species Act when a project could result in impacts to a Federally listed threatened or endangered species or their critical habitat.

U.S. Environmental Protection Agency

- Impacts to Water Quality

- Alternatives [Compliance with 404(b)(1) Guidelines]

National Marine Fisheries Service

- Impacts to Essential Fish Habitat

USDA Natural Resources Conservation Service

- Agricultural issues

VT and NY State Historic Preservation Offices

Effects to cultural resources (archaeological and/or historic) that are eligible for the National Register of Historic Places

VT and NYS Departments of Environmental Conservation

- Water Quality Certification

- Similar goals in regulatory programs

Adirondack Park Agency

Activities within the Adirondack Park

Questions on the Permit Process??

Vermont Agricultural Conversions

The Problem:

•Large land conversion projects where forest is being converted into cropland.

•Smaller projects where existing farm fields have been expanded or improved with additional drainage.

Why Do We Have Jurisdiction?

While the conversion of wetland to cropland still retains the acreage as open space, the methodology necessary to accomplish the conversion is usually jurisdictional.

–Mechanized landclearing

–Ditching with sidecasting of excavated material

–Discharge of fill (backfilling) associated with the installation of drainage tile

Sheldon, VTConverted Wetland – 7.7 acres

Total Forest Cleared - About 90 acres

- Case referred to U.S. Attorney

- Consent decree filed; civil penalty paid; restoration of 5.5 acres completed; ATF permit issued for retention of 2.2 acres

RESOLVED

Fairfield, VT•4.6 acres of wetland conversion and relocation of stream

•Case referred to U.S. Attorney

•Consent Decree

•Restoration Complete

•Civil Penalty Paid

RESOLVED

St. Albans, VT- 42 acre conversion of forested, scrub-shrub, and “old field” wetland.

- Joint Corps/EPA negotiations with landowner and his attorney for resolution

- Restoration of 32 acres; ATF permit for retention of 10 acres of conversion issued

RESOLVED

ON-GOINGIrasburg, VT

Gleason

Frecette

Cook4 separate sites

About 40 acres of direct impact

Some restoration completed

Resolution anticipated in 2008

Back Coventry Road

Pre/Post Clearing

Flow

Flow

Flow

Corps of Engineers VT Project Office

8 Carmichael Street, Suite 205

Essex Junction, Vermont 05452

Marty Abair or Mike AdamsMartha.a.abair@usace.army.mil Michael.s.adams@usace.army.mil

802 872-2893

Fax 802 879-7638

www.nae.usace.army.mil/

New York District, Corps of EngineersRegulatory Field OfficeBuilding 10, 3rd Floor

1 Buffington StreetWatervliet, New York 12189-4000

518 266-6350Fax 518 266-6366

www.nan.usace.army.mil/